CHAPTER – I

INTRODUCTION

INTRODUCTION

Bail in law means procurement of release from prison of a person awaiting trial or an
appeal, by the deposit of security to ensure his submission at the required time to legal
authority. The monetary value of the security known as the bail, or more accurately, the
bail bond, is set by the court having jurisdiction over the prisoner. The security may be
cash, the papers giving title to property, or the bond of private persons of means or of a
professional bondsman or bonding company. Failure of the person released on bail to
surrender himself at the appointed time results in forfeiture of the security. 1 Bail is a
post arrest remedy aimed at the release of the arrested suspect till the date of his trial.
Bail vindicates the traditional right to freedom before the guilt is proved .Bail is allowed
to prevent confinement of innocent persons which would otherwise result into a pre-trial
punishment and to enable an accused person to prepare his defence to the charges
against him which is the common law principle, presumption of innocence.2

Since the ancient times the system of bail has been practiced by different countries of
the world in accordance to their local legal system, the traces of bail has been seen since
the time of early civilization, it is difficult to mention exact date and time when for the
first time bail was introduced or followed but if we go through different ages of our
world culture we could find the references of bail being practiced in different parts of
the world since their initial time, the signs of bail can be seen since far back from the
time of Greek empire followed by roman evolution and how it has developed since
that time

1
http://www.legalserviceindia.com/articles/bail_poor.htm
2
Asim Pandey, Law of Bail Practice and Procedure, Second Edition, 2015, Lexis Nexis. p. 8.
to present modern times, now a days almost all the countries have the system of bail in
their criminal procedure system.3

The law of bail is an integral component of the criminal law procedure and the right to
bail is subject to statutory stipulation. The bailable and non-bailable offences are
precisely classified. Though bail can be granted in both categories of offences, the grant
of bail in non-bailable offences is by exercise of discretion, while in bailable cases bail
to be granted as a right to the accused. In Criminal Procedure Code, 1973 nowhere
define bailable and non-bailable cases, rather they have been declared in reference to
the offences simply by declaring that an offence will be bailable and non-bailable as
declared in first schedule or declared in any other law. In the case of any other laws if
the offence is not declared to be bailable or non-bailable as per specific statute then the
2nd classification in 1st schedule of Criminal Procedure Code, 1973 would apply and
accordingly if the offence is punishable is less than 3 year or more is non-bailable.4
Basically in cases of bail it is a matter of balancing of interest between the individual
liberty of accused and the societal interest. Societal interest lies in societal safety i.e. fair
and effective trial, whereas individual interest lies in the personal liberty by granting
bail.5

Bail is mainly the pre-conviction stage involving the personal liberty of a suspected
person. The concept of bail is mainly involve the two opposite interest one is the
interest of the arrestee person which involve the personal liberty to release him from the
custody on some security may be Monterey or may be any other surety. And the other
interest is the interest of the society to protect the society members from the anti-social
activities.

1.1 CONCEPT OF BAIL

Literal meaning of bail means security, bond, payment and financial guarantee, bail,
although being a legal term it is used by both people of the society law-

3
http://shodhganga.inflibnet.ac.in/bitstream/10603/70509/8/08_chapter%202.pdf
4
The Code of Criminal Procedure, 1973.
5
Supra note 3.

2
men and lay-men, however, this has not been statutorily clear. Conceptually, that it is
still interpreted as the assertion, assumption, and denunciation as restrictions put by the
state on freedom of individuals. The main purpose is for the presence of the accused
arrested and is available for punishment if held convicted. If the accused assures that he
will be present at each and every trial for his case then it is quite possible that he would
be released on bail and allowed him his right of liberty during the trial. Bail is one of the
method by which an accused person can be set to enjoy his liberty in order to avoid a
prison sentence. The term bail literally means appearance of the prisoner to release.
With this idea, the word bail has been taken from an old French verb bailer, which
means to give or to deliver. Although another view is that it is a Latin term “bajulare”
which means “to bear a burden”. The bonds in the sureties, as referred to in the above.
Bail is a conditional release on liberty to an accused who ensures that the accused who
or on behalf of whom undertake, is present on the trial.6

1.2 DEFINITION OF BAIL

In Black’s Law Dictionary, bail has been defined as “a security such as cash or bond
especially security required by a court for the release of a prisoner who must appear at
a future date.”7

The law lexicon defined, “bail as the security for the appearance of the accused
person on giving which he is released pending trial or investigation”. 8

Webster‟s Law Dictionary defined “Bail, a temporary release of a person in exchange

for security given for the prisoner‟s appearance at a later hearing”.9

“To set at liberty a person arrested or imprisoned, or security being taken for his
appearance on a day and at a place certain. Because the party arrested or

6
Available at http://shodhganga.inflibnet.ac.in/bitstream/10603/70509/7/07_chapter%201.pdf
7
Asim Pandey, Law of Bail Practice and Procedure, Second Edition, 2015 at p. 4.
8
Black‟s Law Dictionary, 4th Edn., p. 177.
9
Webster‟s Law Dictionary of Law, India Edn. 2005, p. 41.
imprisoned is delivered into the hands of those who bind themselves or become bail for
his due appearance when required in order that he may be safely protected from the
prison”.10

Justice William Blackstone defined it as “a delivery or bailment of a person to his

sureties on their giving, together with himself, sufficient security for his appearance, he
being supposed to continue in their friendly custody instead of going to jail”. Thus,
when a person is released on bail, the person will be produced by him before the court
when so required. The person who is released on bail is also usually asked to execute a
bond for his appearance at a later stage of the proceeding. 11

The Supreme Court in the case of Kamlapati v. State of West Bengal12, defines bail as
„a technique which is evolved for effecting the synthesis of two basic concepts of human
value, viz., the right of an accused to enjoy his personal freedom and the public‟s
interest on which a person‟s release is conditioned on the surety to produce the
accused person in the Court to stand the trial.‟

1.3 IMPORTANCE OF CONCEPT OF BAIL

The importance of the instrument of bail can be well imagined from the facts that from
the initial stage of accusation at Police level to Apex Court and right from direction for
anticipatory bail to special powers of high court and court of session to grant bail and
writ of habeas corpus and certiorari have been provided to restore the liberty of the
individual. Instrument of bail is a counter to the interest of society and the individual
interest can be sacrificed for the interest of society. That is why the instrument of bail is
cautiously granted by the authorities. It is Herculean task to keep the balance between
these two contrary rights and the rule of law is the only yardstick to perform this task
judiciously. Rule of law means to follow “procedure established by law” which

10
Venkatrammaiya‟s Law Lexicon, 2nd edition, Vol. I at pp. 260-61.
11
Janak Raj Jai, Bail Law and Procedures, 6th edition, 2015, Universal Law Publishing.
12
AIR 1979 SC 777.

4
has its roots to phrase “due process” found in the fifth and fourteenth amendments to
the U.S Constitution.13 Thus, the dominant idea of bail is that the liberty of a person
cannot be lightly interfered with, except in due course of law. The whole object of arrest
and detention of an accused is, obviously, to secure his appearance to abide the sentence
of law. That being so, except where a statute specifically requires, the principles which
should guide the courts in the exercise of their discretion to grant or not is the
probability of the accused appearing to take the trial and not his supposed guilt or
innocence. Considerably such as the nature of inducement, the nature of evidence and
the severity of punishment awardable, have their relevance only because they affect the
likelihood of the prisoner's failing to appear for his trial. Every trial begins with the
presumption of innocence of the accused. But a fair trial does not mean the employment
of methods which end in the acquittal of the guilty.

A fair trial has two objects in view–

(i) It must be fair to the accused.

(ii) It must also be fair to the State. The test of fairness must be
judged from this dual point of view. Just as a criminal trial must never be so conducted
as would lead to the conviction of an innocent person. Similarly progress of a criminal
trial must not be obstructed by the accused so as to lead to the acquittal of a really guilty
person.14

A bail cannot be withheld merely as punishment because the object of detention of an

accused person is never punishment. To keep a person under detention with object of
punishing him on the assumption that he is guilty, even if eventually he is acquitted, is
highly improper. Generally it is the rule to allow bail rather than to refuse bail and it
ought not to be held as punishment. Since

13
Statutory Provisions Relating to Bail : Judicial Trends, Submitted by : Ashu Sanjeev Tinjan, Under the
Supervision of Dr. Preet Singh, Department of Law Maharshi Dayanand University Rohtak, retrieved at
http://shodhganga.inflibnet.ac.in/bitstream/10603/7790/1/01_title.pdf
14
Talab Hazi Husain v. Modhukar Purshottam Mondhkar, 1958 Cr. L.T. 701.

5
the law presumes an accused to be innocent till his guilt is proved, he must be allowed
an opportunity to look after his own case unless its circumstances are such that he
should not be released on bail. The fact that offence is a serious one does not afford a
sufficient ground to refuse bail. There is no hard and fast rule as to when the bail should
be granted and through the discretion of the court is unfettered it must be exercised
judicially.15 In India, we all very well know that daily thousands of arrests are made by
police for different charges among them few are pity offences and some are severe kind
of offences, in all the cases the accused are sent to police custody for detention in jail,
for two obvious reason first to ensure his presence in court for trial and second to give
justice to the victim, if the accused found guilty and to secure that the accused should
not have chance to repeat the same thing doing again or not to involve in any kind of
such things, in all the cases they are locked-up in jail till the trial comes to an
conclusion. Here what is important to see is, how the personal liberty of the individual
granted by the constitution get effected, personal liberty is a fundamental right given by
the constitution to every person which applies even to accused, in that regard law of bail
and arrest have been given much importance in modern times.16

1.4 PURPOSE OF BAIL

The principal purpose of bail is to ensure that an accused person will return for trial if
he is released after arrest. It is not the purpose of the criminal law to confine a person
accused of crime before his conviction. Bail, in criminal cases is, therefore, intended to
combine the administration of justice with the liberty and convenience of the person
accused. Administration of justice on the spot or immediately after the commission of a
crime in accordance with the fundamental principles of natural justice embedded in a
fair and just legal system is not feasible. This appears to be one of the reasons for the
evolution of

15
Mangon Iboton Singh v. Union Territory of Manipur, AIR 1969 Mani 6.
16
http://shodhganga.inflibnet.ac.in/bitstream/10603/70509/11/11_chapter%205.pdf
16
http://shodhganga.inflibnet.ac.in/bitstream/10603/70509/12/12_chapter%206.pdf

6
the bail jurisdiction in any legal system. The release on bail is crucial to the accused as
the consequences of pre-trial detention are given. If release on bail is denied to the
accused, it would mean that though he is presumed to be innocent till the guilt is proved
beyond reasonable doubt, he would be subjected to the psychological and physical
deprivations of jail life. The jailed accused loses his job and is prevented from
contributing effectively to the preparation of defence. Equally important, the burden of
his detention frequently falls heavily on the innocent members of his family. 17 After the
registration of crime, it takes time to complete the investigation and thereafter, it takes
even longer to conclude the trial. It is a matter of common experience that the judicial
machinery, more particularly in India, is ill-equipped to provide a speedy trial to the
accused in conformity with well-established principles of criminal jurisprudence. The
question, whether an accused should be kept in the prison or set free pending
investigation and trial, therefore, falls for consideration before the Court in every
criminal case where the accused is under arrest. An accused person cannot be detained
in judicial custody for a long time by refusing him bail if the legal system is not in a
position to provide a speedy trial. The inability of the judicial system to provide an
expeditious trial to the accused should always be kept in mind while dealing with the
issue of bail. Keeping a person behind bars without providing him a quick trial is quite
incongruous to the concept of personal liberty, which is a basic human right. The under-
trial prisoner, therefore, cannot be allowed to suffer in jail for an indefinitely long
time.18

At the pre-trial stage, every accused person is presumed to be innocent until the matter
is finally disposed of by a competent court. Simply because a person has been charged
with an alleged offence, he does not lose his right to protection of life and personal
liberty.19 He has, till the final disposal of the case against him, the same right as
enjoyed by any other citizen under the Constitution of India,
17
Moti Ram v. State of M.P., AIR 1978 SCC, Paras (29-32).
18
Babu Mulla v. State of M.P., 1978 Cr LJ 1846 (MP) (p. 1847) : 1978 MPLJ 623.
19
Article 21 of the Constitution of India, 1950.

7
and other provisions of the law of the land. That is why various High Courts and
Supreme Court of India have held in their judgments that “grant of bail is a rule and
refusal is an exception”. The main purpose behind the grant of bail according to the
learned Judges was that the consequences of long detention of the pre-trial accused
person who are presumed to be innocent as any other citizen were very grave. In A. R.
Antulay v. R. S. Nayak20, the Supreme Court advocated for the speedy trial on the
following lines:

(a) The period of remand and pre-conviction detention should be as short as

possible.

(b) The worry, anxiety, expense and disturbance to his vocation and peace resulting
from an unduly prolonged investigation, inquiry or trial should be minimized.

(c) Undue delay may well result in impairment of the ability of the accused to
defend himself, whether on account of death, disappearance or non- availability of
witnesses or otherwise.21

1.5 PAROLE

Parole is the release of the prisoner and will be a temporary release. It has certain
conditions before the completion of the maximum sentence period. It refers to the
period of time after a defendant is freed from prison. An offender on parole would
face many of the same rules or precautions as probation. Parole is always granted
to those people who have been imprisoned for a particular time period. It follows
stringent rules to the letter, or they can be returned to custody with extra time for the
violation of the parole.22

Bail is used for the release of suspects from imprisonment pre-trial. It ensures their
return for the trial. If the suspects do not return to the court, the bail will be forfeited,
and the suspect will be brought up based on charges of the crime.

20
(1992) 1 SCC 225 (280).
21
http://shodhganga.inflibnet.ac.in/bitstream/10603/7790/1/01_title.pdf
22
https://kapilchandna.legal/2017/08/20/difference-between-parole-probation-and-bail/

8
When the suspect returns with making all their required appearances, bail will be
returned after the trial is settled. There are cases in which the bail money is returned at
the end of the trial.

Bail is provided before a trial as it allows the person who is charged with a crime to be
released from the jail until the trial date. The cost of the bail is determined by the judge.
It is necessary that one has to pay 10% of the bail amount, and also the bail bondsman
will negotiate it. There will be a full payment is due for the circumstances called for it.23

1.6 PAROLE AND BAIL DISTINCTION

In a court of law both parole and bail have distinct connotations. The particular form,
under which the application is filed, coupled with the prayer made and granted are the
decisive factors to indicate its nature. Bail and parole have different connotations in law.
Chapter XXXIII of the Code of Criminal Procedure deals with the provisions of bail
and bond.24 The effect of granting bail is to release the accused from prison though the
court would still retain constructive control over him during the period. In the
Halshbury Laws of England25 Parole, however, has a different connotation from bail
even though the substantial legal effect of both bail and parole may be the release of a
person from detention or custody. Parole is a form of temporary release from custody,
which does not suspend the sentence the forties Detention, but provides conditional
release from custody and changes the mode of undergoing the sentence. In India, there
are no statutory provisions dealing with the question of grant of parole. The Parole may
be granted by way of a temporary release in accordance with the parole rules or
administrative instructions, framed by the government. The court generally cannot
exercise the power to grant temporary release, but this part would not affect the
jurisdiction of the

23
Ibid.
24
Section 436 to 450 of the Criminal Procedure Code, 1973.
25
Crimes 480 (1986) All L.J. 1253 (1986) 2 Cr. L.C. 669.Vol. 11, 4th ed. para 166. (Halshbury Law of England is
a uniquely comprehensive encyclopaedia of law and provide the complete narrative statement of law in England
and Wales. It covers all areas of laws drawing on authorities including Acts of United Kingdom).

9
high court under Article 226, or of the Supreme Court under Articles 32, 136 or 142 of
the Constitution to direct the temporary release of the detanue. 26 The detune while on
parole is not a freeman. The period during which the detenue is on parole, therefore,
requires to be counted towards the total period of detention. However, if the interruption
of detention is not authorized by law then the period during which the detanue has been
at liberty, cannot be counted but should be excluded from the period of detention while
computing the total period of detention. The basis of preventive detention is suspension
of individual freedom on the basis of imposed sentence of the verdict of the court by
regular trial, if the persons can only be detained and the detention is justified so long it
is found necessary.

1.7 KINDS OF BAIL

1.8.1 Temporary Bail

Every court which has jurisdiction to try bail matter has authority to allow a temporary
bail or parole to an accused. Temporary bail means the accused is released from custody
or jail for specific time and after completion of that time the accused has to return to jail
or in custody as the case may be. Parole is another form of temporary bail. Recently
number of times the convicted accused, Bollywood star actor Sanjay Dutt has been
granted temporary bail or parole, temporary bail, parole is granted to the person who
have been convicted in an offence.27

1.8.2 Interim Bail

It is another provision, where the accused can take advantage and may apply for bail on
some genuine reason, mostly it is granted to the offences which requires to travel, also
to women, children and the persons who have crossed the age of 70 years and also to
the students who are appearing for any examination in such cases interim relief or bail
may be granted. It is to be noted

26
The Constitution of India, 1950.
27
Supra note 2 at p. 170.

10
that interim bail does not mean that in future date regular bail may be granted, it can
be granted only on merit basis. The only condition where interim bail may not be
granted is in offences which has death punishment, but this condition has been relaxed
to women, children and aged person. Where an order of interim bail has been passed
in favour of accused the ordering authority cannot impose any condition while granting
bail.28

1.8.3 Anticipatory Bail

The term “anticipatory bail” is not used in Section 438, but that is clearly the subject
with which the section deals. In fact, “anticipatory bail” is a misnomer. It is not as if
bail is presently granted by the court in anticipation of arrest. When the Court grant
“anticipatory bail”, what it does is to make an order that in the event of arrest, a person
shall be released on bail. Manifestly there is no question of release on bail unless a
person is arrested.29

Anticipatory bail is granted in anticipation of arrest the anticipatory bail ensure freedom
till the regular bail application decided by the Court. 30 Anticipatory bail means where a
person has a reasonable ground that he may be arrested for an non-bailable offence by
the police on suspicion, to prevent such arrest the person moves an application in an
appropriate court seeking bail in advance prior to his arrest this procedure is called
anticipatory bail. Where the application of the person has been allowed then he shall
show that order of Court regarding anticipatory bail when the police come to arrest him,
on producing such order the person shall be released on bail. This option of anticipatory
bail is available to every person who is been suspected of committing or involved in
some non-bailable crime or offence. It is very rare that where the court allows
anticipatory bail it is not a mandatory provision the court has discretionary whether to
allow or not to allow anticipatory bail to a suspected person. If the court at any point
satisfied that anticipatory bail may

28
Ibid. at p. 75.
29
Siddhram Satlingappa Sibbia v. State of Maharashtra AIR 2011 SC 312.
30
P.V. Ramakrishna, Law of Bails, Universal Law Publishing, Ninth Edition, 2016 at p. 246.

11
be granted then court may allow the application. Anticipatory means presumption or
anticipation of something, a possibility that may happen or certain act may occur on a
future day and to prevent that act from being happen necessary precautions need to be
taken. Where the court allows anticipatory bail it means that in the event of arresting a
person shall be released on bail, the anticipatory bail comes in function only on the
occasion of arrest.31

1.8.4 Default Bail

The Code has not used the term “default bail” in any provision. “Default bail” is a
term of convenience evolved by lawyers and judges engaged in the administration of
bail jurisdiction. Default bail simply means statutorily mandated bail that an accused
under arrest custody is entitled to get in the event of the failure of an investigating
officer to complete the investigation within the time limit prescribed by law. Since this
type of bail is granted for the reason of the default in filing a charge-sheet within the
stipulated time limit, it is popularly known as “the default bail”. It is also known as
“compulsory bail”.32 Sometimes the court may have to face a situation where
investigation was not over within the time limit of 60 days or 90 days stipulated in
Section 167 of the code of the Criminal Procedure Code, 1973. In such a situation the
court has no other alternative but to release the accused on bail. This type of
statutory release on bail is popularly known as the default. The logic behind this
provision appears to be that a person cannot be kept in custody for indefinite period on
the basis of incomplete material or investigation. The legislature has, in its wisdom,
provided a time limit of 60 or 90 days as the case may be for completing the
investigation. Within this time limit the police is bound to place a clear picture of the
investigation before the court so that the court can decide whether the accused should be
released on bail or not, if he is in custody, and weather the case is worth putting up for
trial.33

31
Supra note 2 at p. 82.
32
For the full text of Section 167, see Part III of this book.
33
Section 167, The Criminal Procedure Code, 1973.

12
In Rajnikant Jivanlal Patel v. Intelligence Officer, Narcotic Control Bureau, New
Delhi34, it has been held by the Supreme Court that an order for release on bail under
proviso (a) to Section 167(2) may appropriately be termed as an order-on-default.
Indeed, it is a release on bail on the default of the prosecution in filing charge-sheet
within the prescribed period. The right to bail under Section 167(2) proviso (a) thereto
is absolute. It is a legislative command and not court‟s discretion. If the investigating
agency fails to file charge-sheet before the expiry of 90/60 days, as the case may be, the
accused in custody should be released on bail. But at that stage, merits of the case are
not to be examined. In fact, the Magistrate has no power to remand accused beyond the
stipulated period of 90/60 days. He must pass an order of bail and communicate the
same to the accused to furnish the requisite bail bonds. Default bail is granted because
of the statutory mandate and, hence, the rejection of bail application earlier on merits is
not at all relevant for the release of an accused on default bail. In Union of India v.
Thamisharasi35, it is reiterated that when an application for default bail is filed, the
merits of the matter are not to be gone into.

1.8 CLASSIFICATION OFFENCES

Bail simply the process of releasing a person which may be on his personal bond or on
some security, bail is the post arrest process and before trial. In the criminal procedure
code bail is not defined anywhere, but classification of offences into bailable and non-
bailale offences made expressly or may be made after examining the gravity of
offences. Grave offences to be made non- bailable, where bail not to be granting as a
right but to be granted on examining certain factors by exercising the judicial discretion
by courts on some just and human grounds.
34
AIR 1990 SC 71 (paras 12, 13) : (1989) 3 SCC 532 . Note: In Aslam Babalal Desai AIR 1993 SC 1 : (1992) 4
SCC 272 the decision in Rajnikant‟s case has been clarified.
35
(1995) 4 SCC 190 (para 10): JT 1995 (4) SC 253: 1995 (3): SCALE 72; Sadhwi Pragyna Singh
Thakur v. State of Maharashtra (2011) 10 SCC 445: 2011 (10 SCALE 771.

13
An Overview of the NDPS Act with provisions regarding bail and Confession

The NDPS Act has been enacted to consolidate and amend the law relating to narcotic drugs, to
make stringent provisions for the control and regulation of operations relating to Narcotic Drugs
and Psychotropic Substances. The act prohibits the production, manufacturing, cultivation,
possession, sale, transportation, purchasing and consumption of any Narcotic Drugs and
Psychotropic Substances.

However, during the passage of time and the development in the field of illicit drugs traffic and
drug abuse, many deficiencies in the existing laws have come to notice, in particular with
provisions regarding Bail (sec.37) and as to the admissibility of the confession made by the
Accused (sec.67).

Understanding Sec. 37 of the NDPS Act & powers of High Court to grant Bail under Sec.
439 CrPC:

A perusal of Sec. 37 of NDPS Act shows that it starts with a non-obstante clause stating that,
Notwithstanding anything contained in the Code of Criminal Procedure, 1973 no person
accused of an offence prescribed therein shall be released on Bail unless the conditions
contained therein were satisfied. Both the grounds must be satisfied before granting Bail i.e.
The Public Prosecutor must be given an opportunity to oppose the application for such release,
and Where the Public Prosecutor opposes the application, the court is satisfied that there are
reasonable grounds for believing that he is not guilty of such offence and that he is not likely to
commit any offence while on bail.

Criminal Procedure Code is not applicable where any different procedure has been prescribed
by any law. Since the Act prescribes a separate provision for Bail, the general provisions of Bail
under the CrPC will not be applicable. The Act has been enacted with a view to make stringent
provisions for the control and regulation of the operations relating to NDPS.

That being the underlying object of the Act, Sec. 37 of the Act, in negative terms limits the
scope of the applicability of the provisions of the CrPC regarding bail and it cannot be held that
the High Court's power to grant Bail under Sec. 439 of the CrPC are not subject to limitations
mentioned under Sec. 37 of the Act. The Non-obstante clause with which the section begins is
to be given its due meaning and it clearly intends to restrict the powers to grant bail.

However, sub-section (3) of Sec. 36-A of the Act does not effect the special powers of the High
Court regarding Bail under Sec. 439 of the Code of Criminal Procedure. For the offences
punishable under Sec. 37 of the Act, discretionary power given to the Court to order to release
of a person is more rigorous and is to be used very cautiously, unlike order to release a person
on bail by exercising the power under Sec. 439 of the CrPC.

Release under NDPS Act is based on conditions mentioned in Sec. 37 of the Act apart from
other factors, including the paramount consideration like in case of release whether the accused
will flee from justice or will he make an attempt to tamper with the prosecution evidence. The
discretionary power conferred under Sec. 439 of CrPC is subject to the limitations imposed
under Sec. 37 of the NDPS Act.

Considerations for granting bail under NDPS Act:

Before granting bail, the Court is called upon to satisfy itself that there are reasonable grounds
for believing that the accused is innocent of the offence and that he is not likely to commit any
offence while on bail, the allegations of the fact, the police report have to be closely examined
before recording a finding as to whether the conditions given under the said section, are
fulfilled or not.

Powers of the High Court under Sec. 439 of CrPC are curtailed in any way except that they are
to be exercised with embargo and conditions as laid down under Sec. 37 of the Act.

Ordinarily, on a bare reading of these provisions, it would look as if the Court is to adopt a
negative approach and to decline bail but when the legislature have required the court to record
a finding of its satisfaction of certain facts, the duty cast on the court is in positive terms. Grant
of Bail is a rule and its rejection is an exception.

15
Grounds for Cancellation of Bail:

What has been stated in Sec. 37 of the Act would be applicable, accordingly when the question
of release on bail is considered. But once an accused has been released on Bail, the normal
criminal law would spring into action and bail would be open to be cancelled only on the
grounds on which Bail can be otherwise cancelled.

The important grounds for cancellation of Bail are:

 Where the accused misuses his liberty by indulging in similar criminal activity,

 Interferes with the course of investigation,

 Attempts to tamper with evidence or witnesses,

 Likelihood of fleeing, etc.

Non-compliance with mandatory provisions regarding Sec 42 & 50 of the Act:

The provisions of Sec. 42 and 50 are mandatory in nature and contravention of the said sections
will not only vitiate the entire proceedings but will also entitle the accused for Bail and in
certain cases for acquittal as well.

The provisions of Sec. 42 are intended to provide protection as well as lay down a procedure
which is mandatory and should be followed positively by the Investigating Officer. He is
obliged to furnish the information to his superior officer forthwith. Compliance of Sec.42 is
mandatory and there cannot be an escape from its strict compliance.

Sec. 50 of the Act provides for condition under which search of a person is to be conducted.
Failure to do so, would constitute violation of the imperative requirement of law, ultimately
resulting in acquittal of the accused.In terms of Sec. 50 of the NDPS act, a duty has been cast
upon the authorized officer, who is acting on the prior information for making search of a
person, to inform the same person about the right available under Sec. 50(1) of the act i.e. the
person is required to be taken to the Gazetted Officer or the nearest Magistrate for making such
search.
Failure to inform the concerned person about the existence of such right to be searched before
the Gazetted officer or Magistrate would naturally prejudice to the accused and hence, any
conviction and sentence on the basis of recovery of contraband articles from the possession of
the person concerned during the search conducted upon, the person cannot be sustained due to
clear violation of the provisions of Sec. 50 of the Act. It is imperative on the part of the
empowered officer to apprise the person intended to be searched of his right and to be searched
before a Gazetted Officer or a Magistrate.

This requirement is mandatory and requires strict compliance. Though there is no requirement
of law that notices under Sec. 50 of the Act has to be given in writing, but in cases where there
is no public witness, in that event at least the notice ought to be in writing in order to lend
credibility to the prosecution version. At least in those cases, where the entire prosecution case
consists of only police witnesses, there must be notice under Sec. 50 of the NDPS Act, in
writing.

The provisions of Sec. 42, 50 & 57 of the NDPS Act have been made with a purpose, for a
putting check on the powers of the Investigating officers under Chp. IV of the NDPS Act.
When there is non-compliance of these provisions, it must be held that at any rate the evidence
of the Police Officer who failed to comply with the said provisions, cannot be relied upon
implicitly to base the conviction.

15
1. Bailable Offence

Bailable offences define under Section 2(a) of the Court which means an offence, which
has been categorized as bailable, and in case of such offence, bail can be claimed,
subject to fulfilment of certain conditions, as a matter of right under Section 436 of The
Criminal Procedure Code, 1973. In case of bailable offences, the Police is authorised to
give bail to the accused at the time of arrest or detention.36

2. Non-Bailable

Non-bailable means an offence in which the bail cannot be granted as a matter of right,
except on the orders of a competent court. In such cases, the accused can apply for grant
of bail under Sections 437 and 439 of The Criminal Procedure Code, 1973.37 It is
important to note that the grant of bail in a non- bailable offence is subject to judicial
discretion of the Court, and it has been mandated by the Supreme Court of India that
“Bail, not Jail” should be the governing and guiding principle.38

1.9.1 Bail is a Security for Appearance

Bail in its fundamental concept is a security for the prisoner‟s appearance to answer the
charge at a specified time and place. It is natural and relevant for any court to consider
such security in relation to and in the light of the nature of the crime charged and the
likelihood or otherwise of the guilt of the accused there under. At any early stage when
accused asks for bail, the court has necessarily to act on a reasonable and intelligent
anticipation which ex- hypothesis must, to a certain extent, be problematical because the
trial has not run its course. In matters of bail the test to be applied is the test of
reasonable belief as opposed to decision and conclusion which marks the ends of the
trial. The available materials for the court in considering the question of granting

36
Section 2(a) of the Code of Criminal Procedure, 1973.
37
The Code of Criminal Procedure, 1973.
38
State of Rajasthan v. Balchand AIR 1977 2447, 1978 SCR (1) 535.
bail are the charges made, the attendant facts including the police report, facts stated in
the petition for bail and the grounds of opposition to the granting of that petition. The
release on bail does not change the reality and from that fact alone, it cannot be said that
he is not a person arrested for an offence. A person released on bail is still considered to
be detained in the constructive custody of the Court through his surety. He has to appear
before the court whenever required or directed. Therefore, to that extent, his liberty is
subjected to restraint. He is notionally in the custody of the court and hence continues
to be a person arrested. Even in spite of the fact that the accused had been released on
bail, he continues to be a person arrested on a charge of commission of an offence.39

1.9 REVIEW OF LITERATURE

Janak Raj Jai in his book “Bail Law and Procedures” discussed elaborately that it is a
well settled law, that grant of bail is a rule and refusal of the bail is an exception.
Unfortunately, the letter and spirit of the law is not adhered to by most of the Courts in
our country. Personal liberty of an individual citizen and right to life under Article 21 of
the Constitution is the most precious fundamental right which cannot be jeopardized by
any agency or institution whatsoever. A government founded on anything except liberty
and justice cannot stand. All the wrecks on either side of the stream of time, all the
wrecks of great cities and all the nations that have passed away–all are a warning that
no nation founded upon injustice can stand. Personal liberty of a citizen, therefore, is
certainly deprived when the bail is refused. It is too precious a value of a constitutional
system recognized under Article 21 of the Constitution. After all, personal liberty of an
accused is fundamental, suffering lawful eclipse only in terms of procedure established
by law. Keeping in view the fundamental right of each and every individual citizen
irrespective of caste,

http://elib.bvuict.in/moodle/pluginfile.php/184/mod_resource/content/0/Bail%20and%20Judicial% 20Discretion%20-
39

%20A%20Study%20of%20Judicial%20Decissions%20-%20Navneet%20 Prabhakar.pdf

15
colour or creed, a very humble effort has been made by the author in this book to deal
with the provisions and procedure for the grant of bail as per the letter and spirit of the
law of the land.40

P.V. Ramakrishna, described the right to liberty is one of the fundamental rights
guaranteed by the modern constitution of all the civilized countries. The right is as well
recognised in India as in other foreign countries and the constitution of India contains
detailed provisions relating to the fundamental rights. Further the constitution reflects
the tendency of modern civilization to shift the emphasis from the individual to the
community and at the same time it has struck a balance between individual liberty and
social control. It is in the background of the constitution that the law relating to „bail‟ is
being shaped and as such a brief survey of the fundamental rights has been made in the
first chapter of his book. This book deals with the law of bail, bonds, arrest and custody
at length. Bail is a mechanism by which by which the adverse consequences of delay
before trial can be minimised. Attention of the author unfold minutely the minutely the
nature of the law of bails, the principles on which it is founded, and the practical rules
connected with its administration to facilitate the readers understand the basic nuances
of the law. Most recent judicial decisions of Supreme Court and High Courts have been
added in good measure.41

Asim Pandey, in his book Law of Bail Practice and Procedure, described the law of bail
plays a very important role in the administration of justice. Law of bail Practice and
Procedure has been conceptualized as a handy reference work to cater to the needs of
lawyers and judges in day to day court practice. The law of bail is of supreme
importance since it is directly and intimately connected with the liberty of a person
which is safeguarded in article of the constitution. It

40
Janak Raj Jai, Bail Law and Procedures, Universal Law Publishing, 6th edition, 2015.
41
P.V. Ramakrishna, Law of Bails, Universal Law Publishing, Ninth Edition, 2016.

16
is always difficult to decide bail applications without being influenced by external and
internal forces which drive a judge to form a particular opinion.42

V.R. Krishna Ayer, Grant of Bail: Practice and Procedure, Justice V.R. Krishna Ayer
in his judgment in case Gudikanti Narsimulu v. Public Prosecutor43 says “significance
and sweep of Article 21 make the deprivation of liberty, ephemeral or enduring, a
matter of grave concern and permissible only when the law authorizing it, is reasonable,
even handed and geared to the goals of community good and State necessity spelt out in
Article 19. Reasonableness postulates intelligent care and predicates that deprivation of
freedom by refusal of bail is not for punitive purpose but for the bifocal interests of
justice to the individual involved and society affected.” Justice Krishna Iyer also
mention that the code is cryptic on the topic of bail and the Court prefer to be the order
custodial or not. And yet the issue is one of the liberty, justice, public safety and burden
of the public treasury all of which insist that a developed jurisprudence of bail is
integral to a socially sensitized judicial process. Rowena Jones, Bail law and practice:
Recent Developments, in this paper, author describe that bail in New South Wales is
allowed in every case except where the accused is involved in charges of murder rape or
drug offences. In Australia we may see bail hostels. The accused persons who have
been granted restrictive Bail or where the trial process is in progress in such cases the
accused persons are kept in bail hostel.

The author tried to explain the concept of actual bail how bail should work and what is
the exact meaning of bail, for which he mentioned the act of new south wales bail Act
1987, according to which bail means, it allows an individual framed with some criminal
offence to be released from detention or custody on some terms and conditions that he
will not fail to attend the court and will act according to the terms imposed upon him
through bail order. He stressed on the issue that bail is approval to be at freedom or
liberty instead of in custody. He
42
Asim Pandey, Law of Practice and Procedure, Second Edition, 2015, Lexis Nexis.
43
AIR 1978 SC 429 Para 12.

17
also mentioned in his book about the jurisdiction of police and the courts in regard to
granting of bail. He very nicely narrated how to balance the rights of the supposed
accused and the safety of the community while giving the values to the liberty of the
suspected; he also gave the references of the latest amendments made in the Act.

The author mainly focused on the minor offences rather than serious ones, and tried to
suggest how the accused‟s can be rehabilitated and proposed about the bail hostels and
bail information schemes. He explained the terms like Acceptable person: acceptable
person is one who is familiar to the accused generally a near one like relative or a dear
friend, Bail agreement\undertaking: the suspected person signs an agreement stating that
he will follow all the rules which are imposed upon him so he to be released on bail,
Bail conditions: normally the conditions imposed upon the accused are to be present in
court on the given date and promise to behave like a good citizen in the society other
conditions such as to leave with particular personality, to visit area police station on a
given date, regularly attend the treatment or a training program if any imposed etc. Bail
hostel: a residential establishment where suspected persons released on bail are sent for
some particular reason such as to finish a drug or alcohol program. Surety: he the
person who deposit the sum or amount in the court for the release of the accused and
promises to bring him in court whenever his appearance is required in the Court, where
he fails to do so the amount deposited as security will be forfeited.

Author categorised the offences in to different sections those are minor offences and
serious offences and quoted in what offences bail may be given and where it cannot be
granted. He also categorised in what offences the police may grant bail and where the
court has power to do so. He has suggested that there should be special consideration
to the disabled persons and the person who because of their economic conditions
are not able to meet the terms of

18
their bail, he also suggested building the bail hostel and bailing information centres.

Kelly Anne Collins, „Queensland bail laws‟44 in this article provides an overview of the
current Queensland, Bail laws. Recommendations for reform have been made by the
Queensland Law Reform Commission 1993. Granting of bail for a defendant raises
questions for each justice. The right of a person to the presumption of innocence and
his/her right to liberty vis a vis society, has the right to ensure that members of the
public be recorded loads with a crime and confirmation will be punished. A balance
between these two requirements must be found. A balance between the risk to the public
safety by release of the accused and of the personal freedom of the accused only at the
level of the charge, may be wrong. The objective of this article is to offer a review on
the fundamental right of the accused to get bail, it mostly revolve around the rights of
the arrested person to be considered as innocent till his guilt is proved and at the same
time to ensure the society that they are safe from being disturbed by the people those
charged with criminal offences by detaining them. A focus on the objections from the
crime victims has been shown in this article how they raised their voice against the
changes made in the Queensland bail policy and what they have argued in their protest
on the changes in bail policy they claimed that more weightage is given to the rights of
accused and compromised with the safety of the community by giving low priority to it.
Apart from this the crime victims wanted that the granting of bail should be made
stronger that the accused should not get bail that easily where they are suspected of
dangerous or violent offences. The author reviewed the recommendations made by the
Queensland law reform commission which stated that while making changes in the bail
law four most important things has to be taken in to consideration those are,

A) Presumption of innocence to be maintained.

44
Kelly Anne Collis, Article titled as “Queensland Bail Laws”, Queensland Parliamentary Library, 2000,
ISBN – 0724278664, 9780724278664, p. 38.

19
B) Public to be protected from being hurt from harmful behaviour or conduct of the
accused.

C) The priority should be given to the liberty of the people and to be protected
from unlawful or unnecessary depravation of liberty.

D) There should be effective administration of the criminal justice system and it

should be ensured that the accused of an offence should be at any cost be punished if the
guilt is proved. A fair and just trial has to be conducted and till the guilt has been proved
the accused should not be deprived of his liberty being free to leave in the society, thus
a grant of bail allowing the accused to go free until the guilt is proved or convicted.45

Max Taylor, Response by NSW council for civil liberties to review of NSW Bail Act,
1978. Max Taylor says NSW Bail Act 1978 is not humanistic. Presumption in favour of
bail has been removed from the Act which must be restored then alone the council for
civil liberties will give its opinion on the Act. All over the world presumption of
innocence of the arrestee is eroding and judges are also swayed by the public opinion
and articles published by the courts. This article contains provisions regarding the
presumption favouring the bail in all crimes even in those cases where there is no
provision of right to bail in some offences. The author has contended in his report that
no provision has been set up in the bail Act 1978, regarding restriction or limitation
over the bail in a special condition, the author has also pointed out that in this act there
is no minimum or maximum limit has been mentioned respect to application of bail that
the accused may apply in the Court.46

45
Queensland Parliamentary Library, Research Publications and Resources Section, Brisbane, March 2000 ISSN
1325-1341 ISBN 0 7242 7866 4, https://www.parliament.qld.gov.au/documents/explore/
ResearchPublications/researchBulletins/rb0100kc.pdf
46
New Council for Civil Liberties Submission to the New South Wales Law Reform Commission (NSWLRC) In
Relation to the Review of the Law of Bail, http://www.lawreform.justice.nsw.gov.au/ Documents/Completed-
projects/2010-onwards/Bail/Submissions/BA03.pdf

20
1.10 SIGNIFICANCE OF STUDY

In this research I would like to work out to evaluate the existing provisions of bail. The
basis on which bail is granted while exercising the judicial discretion. Whenever an
application for bail is made to a court, the first question that it has to decide is whether
the offence for which the accused is being prosecuted is baillable or otherwise. If the
offence is bailable, bail will be granted under Section 496 of the Code of Criminal
Procedure (of 1898) equivalent to Section 436 of Criminal Procedure Code, 1973
without more ado; but if the offence is not bailable, further considerations will arise and
the Court will decide the question of grant of bail in the light of those further
considerations such as, nature and seriousness of the offence, the character of the
evidence, circumstances which are peculiar to the accused, a reasonable possibility of
the presence of the accused not being secured at the trial, reasonable apprehension of
witnesses being tampered with, the larger interests of the public or the State, and similar
other considerations which arise when a court is asked for bail in a non-bailable offence.

It is clear that an unnecessarily prolonged detention in prison of under trials is against

the law and justice which is the main object of Indian constitution by declaring in the
preamble of the constitution, equal justice to every person, the law of bails should have
too much discretion in grant of bail and guidelines must be codified. The study is to
contribute to literature on bail. Bail is a right and in the interest of liberty bail must be
granted. There are stringent laws passed by parliament every alternate year which have
been denuded of the safeguards for innocent persons who might be arrested on
suspicion.

1.11 OBJECTIVE OF THE STUDY

The aim of my study is about to highlight the drawback of the bail system in India as
the matter of bail is largely a matter of discretion. So such discretion

21
has to be exercise not arbitrarily but judiciously on the basis of norms which by now
have become fairly established but not followed properly.

 The study will highlight the demerit of refusal of bail in minor and petty
offences due to exorbitant money as security.

 The study will help to analysis the concept of anticipatory bail, as not to
allowed the alleged criminal to disappear evidences.

 To suggest to classify certain offences in which bail must not be granted

as in cases of acid-attack, gang-rape, offences against children etc.

 Our bail system suffers from property oriented approach which seems to
proceed on the erroneous assumption that risk of monetary loss is the only deterrent
against fleeing from justice.

1.12 RESEARCH METHODOLOGY TO BE OPTED

The present research work requires theoretical study of the topic. The theoretical work
will deal with judicial decisions relate to grant or refusal of bail. The study will include
the comprehensive study through the libraries, journals, Case laws and books. The
entire study is concerned to the analysis of bail provision in India. This study comprised
doctrinal form of research. Doctrinal research is done with help of primary sources
including Acts, legislation, bylaws, ordinances and secondary sources are the various
judgements prounced by the Hon‟ble Supreme Court of India and the other High Courts
in India.

1.13 HYPOTHESIS

 Whether the existing criteria granting and refusing bail is sufficient.

 Whether the societal interest override in certain heinous crimes
such as gang-rapes, acid-attacks against individual liberty as denying bail.

 Whether monetary bond are sufficient or required some stringent

security regarding bail.

 Whether the existing criteria for exercising the judicial discretion

fulfilling the present needs.

1.14 SCHEME OF THE RESEARCH WORK

This research work is entitled “LAW RELATING TO BAIL IN INDIA: A

CRITICAL STUDY”.

1.15 CHAPTERIZATION

The researcher has divided whole research work into seven chapters which are as
follows:

Chapter-I

The first chapter of my research work is an Introduction. In this chapter researcher has
mentioned meaning, definition, concept and importance of bail. This chapter focused on
kinds of bail, importance and significance of research work, a brief over view of review
of literature, hypothesis and the chapterization of research work.

Chapter-II

This chapter of my thesis deals with, “Concept of Bail: A Historical Prespective”. This
chapter outline the evolution of bail in England and United States. I am going to discuss
bail under India law stated with Moghul Rule and different law commission reports.

23
Chapter-III

This chapter of my research work titled as “Classification of Offences and Bail

Mechanism”. Main focus is on classification of offences, bail in bailable offences and in
non-bailable offences, functional aspect of bail and statutory aspect of bail mechanism.

Chapter-IV

This chapter titled as, “Constitution Provisions and Concept of Bail”. In this chapter
constitution provision which basically relating to protection of personal liberty under
Article 21 and issue of bail, right to speedy trial and right to bail has been discussed.

Chapter-V

This chapter of my research work deals with, “Judicial Approach regarding Bail in
India”. In this chapter researcher has discussed various provisions which are relating to
judicial approach and various considerations which to be taken while deciding
application of bail. In this chapter concept of judicial discretion concept of anticipatory
bail and duration of anticipatory bail discussed elaborately.

Chapter-VI

This chapter titled as, “Law Relating to Bail in India: A Critical Analysis”. In this
chapter a detailed analysis of law relating to bail in India, power of granting bail, the
various provisions of bail, anticipatory bail and cancellation of bail with critical
analysis discussed.

Chapter-VII

In this chapter researcher has tried to draw the inferences based on the foregoing
chapter of research work. In this chapter concluding remarks alongwith suggestions has
been discussed for achieving the object of research study.